RECUSAL OF PRESIDING TRIAL JUDGE

The basic requirements to succeed for a recusal application

1. Proof by the applicant at least on a balance of

probability of the facts relied on for the reasonable suspicion of bias.

2. A reasonable suspicion of bias in the mind of the

applicant, objectively justifiable, which must be held by the hypothetical reasonable, informed person and based on reasonable grounds.

3. There is also a presumption of integrity and competence

in favour of judges.

4. The requirement of the proof of facts relied on for the

alleged reasonable suspicion, not satisfied when allegations based on pure hearsay or double hearsay.

4.1 The allegation of a co-accused in an affidavit,

that presiding judge had promised him not to sent him to prison on 130 charges of fraud, is so farfetched and improbable, coming from a person who is a self-confessed liar of grotesque proportions and in addition a person who himself provided expert evidence that he had diminished responsibility, that no weight could be given to his allegations.

4.2 The application for recusal rejected as

misconceived and a gross abuse of process. CASE NO. CC 118/93

IN THE HIGH COURT OF NAMIBIA

In the matter between

THE STATE

versus

1. REINHARD EUGEN AUGUST STROWITZKI

2. BERND ALBERT BoCK

CORAM: O'LINN, J.

Heard on: 1996.07.16 & 17; 1996.08.05, 09 & 12;

Delivered on: 1996.08.19

JUDGMENT ON SENTENCE

O'LINN. J.: I will divide this judgment into three parts

as follows:

PART 1: INTRODUCTION.

PART 2 : THE APPLICATION FOR RECUSAL

PART 3 : THE SENTENCE.

PART 1 : INTRODUCTION

On Monday the 12th August 1996 after reading the papers and

hearing argument I dismissed the application on behalf of

accused no. 1 Strowitzki for my recusal and for the

declaration of criminal proceedings against accused 1 and 2

as null and void. The Court gave as the main reason for the

dismissal that the application is a gross abuse of Court

procedures and said that full reasons would be given later.

The hearing of argument on behalf of accused no. 2 regarding

sentence was .then proceeded with and thereafter the matter

was adjourned for sentence to Monday 19th August. After

adjourning the hearing for sentence, I also charged Mr

Geier, counsel for accused no. 1, with contempt of court and

adjourned this hearing also to 19th August, to be proceeded

with after sentence of the accused.

The parties will be referred hereinafter as follows:

Accused no. 1: Strowitzki; Accused no. 2: Bock; Counsel for

the State: Mr Small; Counsel for accused no. 1: Mr Geier;

Counsel for accused no. 2: Mr Botes.

PART 2: THE APPLICATION FOR RECUSAL.

A. The applicant in the recusal application is cited as

Strowitzki; respondent as the State; and Bock as a

party. In paragraph 4 of Strowitzki's founding

affidavit, he explains that Bock is cited "in so far as

this may be necessary as a result of the interest he

might have in the outcome of this matter." The outcome

referred to is the recusal and declaration that the

whole criminal proceedings, including the conviction of

both accused on 13 0 charges of Fraud amounting to

approximately 2.5 million Namibian dollars, be set

aside. Mr Geier alleged that before bringing the

application he had inter alia extensive discussions

with Mr Botes which was not denied by Mr Botes. Mr

Botes did not formally associate him and his client

with the application but neither did he disassociate

him and his client. Mr Botes apparently also advised

that the application be brought before sentence. Bock

is also the main witness on whom the application is

based. It is apparent therefore that although

Strowitzki is the applicant in name, both he and Bock

are the applicants in substance.

The relevant parts of the application are:

The notice of motion reads as follows:

"TAKE NOTICE that application will be made on

behalf of the abovenamed applicant on 9 August 1996 at 15h00 or as soon thereafter as counsel may be heard for an order:

1. Granting leave to dispense with the forms

and service provided for by the Rules of court and that this application be heard as a matter of urgency.

2. For the recusal of His Lordship Mr B

O'Linn, the presiding judge in case no. CC118/93.

3. Declaring the proceedings in the

abovementioned criminal matter conducted under case number 118/93 as null and void as a consequence.

4. For further and/or alternative relief.

TAKE NOTICE FURTHER that the affidavits of Dr R

E A Strowitzki and Bernd Albert Bock annexed hereto will be used in support thereof.

The founding affidavit of Strowitzki reads as follows

"I, the undersigned,

DR REINHARD EUGEN AUGUST STROWITZKI

do hereby make oath and say that:

1. The contents hereof are within my own

personal knowledge save where otherwise stated or as the context may otherwise indicate.

2. I am an adult male, Accused no. 1 in the

criminal proceedings instituted under case no. 118/93 against myself and another and the Applicant herein.

3. The Respondent is the State cited herein in

its capacity as the prosecuting authority care of the offices of the Prosecutor- General, High Court Building, Windhoek, Republic of Namibia.

4. Accused no. 2 is Bernd Albert Bock, an

adult male, co-Accused in the same criminal proceedings and cited herein in so far as this may be necessary as a result of the interest he might have in the outcome of this matter.

5. Subsequent to my arrest during April 1992

and the commencement of the trial thereafter during September 1993 and further protracted proceedings and at the beginning of August 1995 certain allegations came to my knowledge as a result of the fact that the second accused, Bernd Albert Bock narrated to myself certain events which are set out in greater detail in his supporting affidavit annexed 5

hereto and from which it emerges that it is

alleged that the learned presiding judge made certain promises to Accused no. 2's mother and himself.

6. I was highly alarmed as a result of the

nature of these allegations as they implied that the presiding judge, Mr Justice Brian O'Linn had promised preferential treatment to my co-Accused and that I would get disadvantaged as a result.

7. As I was under cross-examination at that

stage of the trial and was of the view that 1 was not able to discuss this new aspect of my trial with my counsel, I decided immediately to do something about these allegations made by Accused no. 1.

8. During the ensuing weekend I drafted a

document headed 'Urgent and direct application of no confidence in the presiding Judge Brian O'Linn by Accused no. 1' which is dated 7 August 1995 which I also delivered at the Registrar's office on 7 August 1995 who affixed the wrong date stamp thereto dated 4 August 1995. I annex a copy thereof marked "A".

9. As a result of the service of this

document, an adjournment was necessitated as the record shows during which my intended application for the recusal of the presiding judge was considered.

10. As Accused no. 2 was unwilling at that

stage to provide myself with a supporting affidavit in this regard, it was decided not to proceed with the intended application for recusal then.

11. The trial thereafter commenced.

12. Subsequent to this development I remained

dissatisfied with the state of affairs pertaining to my trial and as a result of the serious averments made by Accused no. 2 continued to feel that the presiding officer was not unbiased as far as my case was concerned and that I was at a disadvantage.

13. As a result, I decided on a further avenue

to voice my lingering concerns and accordingly addressed a letter to the Judge President of the High Court of Namibia dated 15 February 19 96, a copy of which is annexed hereto marked "B".

14 . I received a reply thereto from Mr Justice

, t

G J C Strydom, the said Judge President of

the High Court of Namibia dated 26 February 1996, a copy of which I annex hereto marked "C" .

15. Subsequently Accused no. 2 and myself were

convicted and the bail of Accused no. 2 was withdrawn and Accused no. 2 found himself once again as an inmate of the Windhoek Central Prison.

16. During his detention there he made no

secret of the fact that he was dissatisfied with his conviction and repeated the allegations to other fellow prisoners and myself relating to the 'lift' and the promise he had obtained from the presiding judge and those concerning the telephone conversation which apparently had taken place between his mother and the judge seized with our matter.

17. I took this opportunity to approach Accused

no. 2 once again and enquired whether he would now be prepared to provide myself with an affidavit confirming the true nature of the averments made in this regard.

18. Accused no. 2 agreed.

19. As a result of this I once again gave

instructions to counsel to bring an application for the recusal of the presiding judge.

20. On the basis of the history and the nature

of the averments made and the assurances made by Accused no. 2 that his allegations constitute the truth and which have now confirmed and deposed to on affidavit I cannot but harbour the suspicion that the learned presiding judge is biased as a result of the nature of the promises made the Accused no. 2 and that I have therefore been placed at a disadvantage and aver therefore that my trial cannot in such circumstances be fair.

21. I respectfully submit that this belief is

reasonable in the circumstances, I accordingly pray that it may please the above Honourable Court to grant an order in terms of the prayers contained in the Notice of Motion to which this affidavit is annexed and to also grant the condonation sought therein." 7

Strowitzki referred in paragraphs 8, 13 and 14 to

certain Annexures "A", "B" and "C".

The only relevant allegations are contained in Annexure

"B", p. 1 and 2 in a so-called complaint by Strowitzki

to the Judge President:

"ii. I am since September 1993 Accused no. one

in the High Court case no. 118/93 on the State versus Dr R E A Strowitzki and B A Bock. Before September I was accused no. two. The presiding judge is Judge O'Linn, the prosecutor is Advocate Smal and for the defence of Accused no. one Advocate Geier and for Accused no. two Advocate Botes. The acting interpreter is Mr Nolting. During adjournments of the Court reported Accused no. two Mr Bock repeatedly about some telephonical conversations between Judge O'Linn and the mother of Mr Bock, the in the meantime late Mrs A M Bock and the assurance given by the presiding Judge O'Linn about the finalisation of the criminal case for the son accused no. two Mr B A Bock. Mr B A Bock, since 13 April 1993 free on bail, will get utmost a fine was the assurance. The two advocates of the defence and the interpreter as well myself was listen to the reports in the courtroom of the B-court in the High Court Building."

Strowitzki further related that on one occasion when a

police constable fetched Strowitzki from the cells to

the High Court during a Court adjournment during

approximately August 1995, the said policeman told him

that he had seen his "co-accused Bock and judge O'Linn

together driving in the official car of judge O'Linn

but with my arrival in the courtroom I became

witness as my co-accused Mr Bock told just this

sightseeing tour event to the interpreter and the

present defence advocates Later explained Mr

8

Bock in the lobby of the courtroom in details which

assurance judge O'Linn during the short car trip have

given to Mr Bock about the case which are still in

process."

Strowitzki attached the reply by the Judge President

dated 26/02/96 as Annexure "C". The relevant part is

in par. 2 thereof which reads as follows:

"2. Complaints re Judge:

These are serious allegations levelled at

a respected Judge and one who is known to be impartial and objective. I have looked at each and every one of the complaints. All are based on hearsay or rumour. Your own legal representative who, so it seems, was apprised of all these instances did not see his way clear to bring an application for the recusal of the Judge. After all if there was any substance in these stories it would have been the duty of your legal representative to investigate same, and if satisfied, to bring an application to Court. It seems that he declined to do so and, in the circumstances, I am not going to act on rumour and hearsay. May I again reiterate that if there is any substance in these stories, which I doubt, it will be the duty of your legal representative to investigate them, and if satisfied, to bring an application to Court for the recusal of the Judge."

The relevant part of the supporting affidavit of Bock

reads as follows:

"I, the undersigned,

BERND ALBERT B6CK

do hereby make oath and say that:

1. The contents hereof are within my own

personal knowledge save where otherwise stated or as the context may otherwiseindicate.

I am an adult male inmate of Windhoek

I have read the founding affidavit deposed

to by the Applicant herein and confirm thecontents in so far as it relates to myself.In addition I wish to add the following:

3.1 On or about 13 April 1993 and after

detention of approximately 1 year, I was released on bail on the following conditions:

3.1.1. That an amount of N$200 000

be paid therefore;

3.1.2 That I would have to report

twice daily to the Windhoek Central Police Station; and

3.1.3 That I was permitted to

leave the District of Windhoek without the requisite permission from anybody.

3.2 Subsequent to my release but during

this trial, I became engaged to Jacqualine Francisca Eberenz now Bock on 28 September 1993.

3.3 During October 1993 I made use of my

privilege and travelled in the company of my said fiancee to Otjiwarongo to visit my mother, Anne-Marie Bock.

3.4 During this visit and in the presence

of my fiancee my mother informed me that she had made a telephone call to the presiding judge Mr Brian O'Linn and had asked him:

'Brian listen, what are you going to

with my son.'

3.5 She apparently received the answer:

'Listen Anne-Marie I will not send

your son to prison.'

3.6 The informal nature of the

conversation between the presiding judge and my mother is explained as a result of the fact that they have known each other for many years. 10

3.7 I also refer in this regard to the

confirmatory affidavit by Jacqualine Francisca Bock, nee Eberenz whom I have since married and from whom I have become divorced and wish to add that a confirmatory affidavit by my late mother has become impossible as a result of her passing away on 11 September 1994.

3.8 During that time I also decided not to

mention this information to my co- Accused the Applicant as this was an aspect that quite clearly favoured myself and as I was reassured that the consequences of this trial would not hit myself.

3.9 Subsequently and during the continued

trial proceedings either at the end of July or at the beginning of August 1995 and during one of the lunch adjournments I was on my way from my residence back to court to attend the afternoon session.

3.10 While I was in the process of walking,

a vehicle stopped and Mr Justice Brian O'Linn offered a lift to myself to court.

3.11 I accepted and during this trip I

enquired from him:

'What about our case'

3.12 The answer by the presiding judge was:

'Listen Bernie, I won't send you to

prison.'

3.13 Only then I informed Accused no. 1,

the Applicant herein of this conversation and also of what my mother had told me earlier.

3.14 The Applicant, Accused no. 1 herein,

reacted by bringing the 'application of no confidence' referred to in the founding papers and I confirm that I was not willing at that stage to jeopardise my position by making my statement available to the applicant, to further his interests.

3.15 As a result of this, the application

for recusal made during August 1995 was apparently not persisted with.

3.16 The trial continued and we were

11

convicted on 15 July 1996 on which day

also my bail was withdrawn.

3.17 As a result of this situation, I have

at this stage languished in prison for nearly 4 weeks already.

3.18 I was upset as a result of this

conviction and because of my continued incarceration. In addition and because of the arguments exchanged during the post-conviction stage of the trial I feared that I am now facing a sentence of substantial imprisonment contrary to the promises made to my mother and myself.

3.19 I voiced this dissatisfaction in

prison and repeated there what promises had been made to myself during the car trip in question and to my late mother.

3.2 0 I was approached subsequently once

again by the Applicant herein with the request as to whether or not I would be prepared to repeat these allegations under 'oath. I agreed as emerges herefrom."

The relevant part of the confirmatory affidavit of

Jacqualine Bock (nee Eberenz) reads as follows:

"I, the undersigned,

JACQUALINE FRANCISCA B6CK (NEE EBERENZ)

do hereby make oath and say that:

1. The contents hereof are within my own

personal knowledge save where otherwise stated or as the context may otherwise indicate.

2. I have read the founding papers and the

supporting affidavit deposed to by my ex husband, Bernd Albert Bock and wish to confirm its contents in so far as it relates to myself."

In reply to the aforesaid notice of motion, the State

filed the following motion:

12

"TAKE NOTICE that an application will be made on

behalf of the Respondent on 12 August 1996 at 09:00 or as soon thereafter as counsel may be heard for an order:

1. Granting leave to dispense with the forms

and service provided for by the Rules of court and that this application be heard as a matter of urgency.

(a) Statements by the mother of accused 2

(b) Statements allegedly made by the

filed by Applicant, which are scandalous,

vexatious, or irrelevant in so far as it constitutes inadmissible hearsay by person who are not parties and not called as witnesses to prove the truth of the matters stated therein;

3. Further and/or alternative relief."

The immediate prelude to the morning of the application

in open Court.

On 15 July 1996 I convicted both Strowitzki and Bock on

130 counts of Fraud totalling an amount of N$2 461 958.

The case was then postponed to 16th July for evidence

and argument on sentence. Evidence was then called in

regard to Strowitzki and subsequently argument

concluded in regard to both Strowitzki and Bock but, at

the request of counsel for Bock, leave was granted for

postponement to 17/07/96 to enable Mr Botes to decide

whether or not to call a psychiatrist Dr Maslowski in

mitigation to testify about Bock's alleged diminished

responsibility. 13

On 17/07/96 a further indulgence was granted for

postponement to 05/08/96 on the application of Mr

Botes, to call Dr Maslowski.

On 05/08/96 Mr Botes again applied for a further

indulgence to postpone the matter to 09/08/96 to call

Dr Maslowski. This application was again granted.

Eventually on 09/08/96 Dr Maslowski testified. He was

cross-examined by Mr Geier as well as Mr Small.

The Court also put certain pertinent and critical

questions to Dr Maslowski to establish the relevance of

his findings and opinion in relation to the facts found

by the Court in its judgment on conviction.

2. Immediately after the conclusion of Maslowski's

evidence, but before any further argument could be

presented relating to the evidence of Dr Maslowski, Mr

Geier rose to inform me that he has received

instructions to bring another application.

He said: "That there would seem to be a possible basis

therefor, but until I have it in affidavit form and

have investigated this avenue properly, I will not

disclose this in open Court." He then asked to see me

in Chambers and I granted this request.

3. The crux of what happened in Chambers was subsequently

put on record in Court on the 12/08/96:

14

"The way I remember the consultation is that

after Mr Geier indicated that he wanted to bringan urgent application here in court, he alsoasked that counsel see me in chambers. Arrivedin chambers, were present myself, Mr Geier, MrBotes and Mr Small. Mr Geier then said that heintends to bring an application for my recusalon the basis of perceived bias. I asked him onmore than one occasion whether he would tell mewhat it is about. What is the allegation, andhe said on more than one occasion that he cannotdo that because he wanted to take the affidavitsand by doing so he would then deal with thematter in the shortest and the cleanest way. Ialso put to Mr Geier why at this stage, and whycannot he bring any application for a specialentry or an appeal if he has any problem, if hehas any problem of any irregularity whatsoever.Mr Geier did not say why not but insisted thathe would rather take his affidavits and bringthe matter to court. It was also pointed out toMr Geier by me that he would have all theseremedies and I indicated that I was not verysympathetic at that stage to hear thisapplication at this late stage. Mr Geierinsisted that he would take his affidavits andrather bring the application to court becausethat would be the cleanest arid the shortest way.I'm not dealing with what other counsel said,you can add that if you think it's relevant.Thereafter I waited from 15:00 to 16:30 for anydocuments in the application and about 16:35 theCourt resumed to hear this application. Now asto what happened in chambers, Mr Geier, is thereany corrections you want to suggest?MR GEIER: Yes, the first thing that comes to mymind, My Lord, immediately is the aspect whereYour Lordship pressed me to, with the questionwhy this application had to be brought at thisstage.COURT: Yes.MR GEIER: If my memory serves me correctly, Iindicated to Your Lordship that sentencing wasstill outstanding and that there would beaspects which needed addressing before thatbecause they could have a bearing on sentence.I believe that is an important aspect that Iwish to place on record.COURT: Yes, and is it correct at least thatI asked you to give me an indication of what theallegation is and you refused?MR GEIER: I indicated to Your Lordship that Idid not want to bring such an application untilI have such instructions in affidavit form. Inother words I was not going to bring such anapplication lightly and only if armed withaffidavits. In other words with statementsunder oath would I decide whether to proceedwith the application or not and therefore Ideclined at that stage to disclose what the oral 15

instructions had been."

Mr Botes and Mr Small agreed with the correctness of

what I placed on record.

4. After the meeting in Chambers, the Court hearing

resumed and I ordered the matter to stand down until

15:00 as requested by Mr Geier.

At 15:00 there was still no sign of the application and

only at approximately 16:30 Mr Geier handed me a copy

of the application.

5. I was extremely shocked by the allegation in the

application because I knew they were utterly false.

6. It was the first time that I became aware of the

complaint in Annexure "C" to Strowitzki's founding

affidavit and consequently enquired from the Judge

President about it. The Judge President confirmed that

he had never informed me of the allegations and told me

why.

I should pause here to point out that in the subsequent

hearing I invited Mr Geier to confirm this with the

Judge President but he refused. He eventually however

indicated that he could not controvert this fact.

7. The Court resumed its hearing about 16:45.

16

When the hearing resumed, the media was well

represented at the hearing.

9. At the resumption the following exchanges took place:

"MR GEIER: My Lord, may I first just thank

the Court for the indulgence granted to settle the papers. COURT: Yes "

"COURT: Yes, well Mr Geier, I intend asking

for the police at high level to immediately investigate these allegations and I can assure you that every little bit of that is absolute lies, good. Carry on. MR GEIER: My Lord, may I (intervention) COURT: Mr Geier, when you argued the matter did you read the Court Judgment as far as Mr Bock is concerned where I rejected his story of being influenced. I gave the Judgment rejecting all his excuses and you come to this Court as a Counsel and you bring before this Court an affidavit by Mr Bock that, from somebody in the family that his dead mother talked to me and I promised not to send him to jail, did you investigate that, Mr Geier? MR GEIER: My Lord, I rely merely on the basis of the allegations deposed to. COURT: But can you, Mr Geier, can you, didn't you have to examine it, to investigate it, look at the trial what happened, whether this man was given favoured treatment? MR GEIER: My Lord, the allegations are in respect of sentence, we have not reached that stage yet. COURT: Well, I've given you now some indication of what is the position, what you should have considered, now carry on, Mr Geier. MR GEIER: Yes, My Lord, just briefly when it comes (intervention) COURT: Mr Small, will you see to it that the matter is immediately investigated at the highest level by the police, all the allegations by the applicants. MR SMALL: Yes, My Lord, I will do that, My Lord, and I can just indicate to Your Lordship, my Learned Friend, unfortunately at this stage we only received these documents a short while ago, I'm still studying them and I can just indicate it may happen that we will have to file additional also affidavits in this regard. COURT: I see. MR SMALL: It may also be that after consideration of the application that I will move for an application to strike out certain 17

parts of the affidavit so I'm just giving the

Court an (intervention) COURT: Well there's two basic allegations, one is supposed to be based on a dead woman what somebody understood she meant, and the other one what accused no. 2 has said. MR SMALL: That is correct, that is correct, yes. "

10. The hearing thereafter was adjourned until 09:00 on

12/08/96 .

11. On 12/08/96 the application was argued and after

argument the Court rejected the application as stated

supra.

D. DID THE APPLICANT MAKE OUT A CASE OF URGENCY?

I ruled at the outset that the notice of motion by the State

to strike out should be heard as an integral part of the

application as a whole.

1. The question of urgency.

1.1 There was no argument at all on the issue of

urgency.

1.2 The first prayer in the notice of motion was for

"leave to dispense with the forms and service

provided for by the Rules of court and this matter

be heard as a matter of urgency."

1.3 However there was no certificate of urgency by

counsel as required by Rules of court and no

18

request for condoning this defect.

1.4 In the application itself there are no grounds set

out in support of the aforesaid prayer for

treating the application as one of urgency.

1.5 The facts relevant to urgency are either extremely

vague or inconsistent with any urgency. So for

example:

(a) Neither Strowitzki nor Bock says when Bock

consented to make an affidavit except that it

allegedly happened at or after conviction on

15th July 1996.

See par. 3.16 - 3.20 of Bock's affidavit,

supra.

(b) The two alleged events relied on took place

long before conviction, namely:

The so-called promise to Bock's mother more

than 4 years ago and the alleged promise to

Bock, in August 1995.

1.6 The reason for the urgency is patently absurd. It

amounts to this :

The conviction of both Strowitzki and Bock took

place on 15th July. In that conviction there was

not the slightest indication of Bock being

19

preferred to Strowitzki; to the contrary, it was

found that the lies told by Bock, was to a

substantive degree of his own making and that his

excuse that he was even ordered by Strowitzki, was

rejected as either false or grossly exaggerated.

In the premises there could not be any substance

in any allegation that the conviction was unfair

in that I preferred Bock to Strowitzki. And as to

sentence, the best possible way of demonstrating

bias in the form of preference for Bock would be

in the judgment on sentence which was contemplated

for the day on which the recusal application was

brought or not later than the next Court day. If

there then was any indication of bias, an appeal

could be lodged or even a review or an application

for a special entry, even before another judge.

In such a case, the presiding judge in the trial,

would also have had the opportunity to reply on

affidavit, if need be to testify viva voce.

It would appear that both the accused had become

adept in the more than 4 years that have elapsed

since the arrest of the accused in the

requirements of a fair trial and how to abuse it.

There were about 4 applications or attempted

applications to quash the trial on the ground that

there could not be or would not be or was not a

fair trial. The present is the fifth attempt.

20

It seems that they realised that by using the

procedure before sentence of application for

recusal, they could fabricate any lie against the

presiding judge, without any opportunity for

replying or without the risk of a repudiation by

the presiding judge, because should he reply -

they would then allege that he is now descending

into the arena and should for that additional

reason recuse himself.

The strong probability is that Strowitzki and Bock

realised that a substantial prison sentence for

both accused could be expected and then, as a last

straw, conspired to lie about the presiding judge,

just as they did in regard to Dr Herrigel and Mr

Brandt.

It was a notorious fact at the time that the

presiding judge was under tremendous pressure in

that he was also chairing the Judicial Commission

of Enquiry into Legislation for the more effective

combating of crime and was due to leave on the

very Monday, 12th August for a series of oral

hearings in Namibia countrywide.

Mr Geier's justification that an application such

as the present had to be brought at the earliest

possible moment is preposterous and devoid of any

sense. 21

Firstly, there is no indication whatever in the

founding and supporting affidavits, that the

application was brought at the earliest possible

moment. Secondly, there was no sign whatever in

the trial itself, that Bock was being preferred

above Strowitzki.

Thirdly, the allegation about preferring

Strowitzki in inherently vague. If the suspected

preference was to the effect that I would and

could, notwithstanding what was said about Bock in

an open trial at the time of conviction, let Bock

off completely with a fine or a warning, then such

prospect is so inherently improbable that it could

only be the brainchild of a sick and distorted

mind.

It follows that the application could have been

rejected solely on the ground that no

justification was shown to treat the application

on the basis of urgency and to dispense with the

Rules.

E. MR GEIER AND HIS CLIENT'S BASIC MISCONCEPTION.

1. Mr Geier contended that all he had to prove was a

reasonable suspicion of bias on behalf of Strowitzki.

This according to him was not actual bias, but a

reasonable perception of bias. He did not address the

question of what is meant in law by the word

22

"reasonable". As far as he was concerned, hearsay is

admissible and sufficient evidence. No facts need be

proved. • All that he needed was the fact that

allegations were made by Bock to his client Strowitzki,

even if the basis for those allegations by Bock is

again an allegation made by a dead person to Bock, i.e.

what is referred to in legal circles as "double

hearsay" . The truth of the allegations are not a

relevant or necessary issue. The credibility of the

person who made the allegations is also not relevant,

not even if that person or persons are self-confessed

liars of gross proportions or have been proved as such

in the same judicial proceedings. The probabilities on

the issue of the truth of the allegations are also

irrelevant because whether or not the allegations are

true, are itself irrelevant. The only relevant facts,

circumstances or event which need be considered in the

application,is that the applicant had harboured a

suspicion for a considerable time and then after

conviction, a disgruntled co-accused, now convicted and

facing a considerable period of imprisonment, was

willing to make an affidavit, confirming allegations

made in the past prior to his conviction.

Notwithstanding pertinent questions by the Court to

alert Mr Geier to the correct approach and all the

relevant considerations and facts to be considered, he

stuck to his guns undeterred.

Mr Geier apparently never considered, that should his

23

approach be correct, it would mean that the Court would

be held hostage by any criminal or group of criminals

and that the administration of justice would become

impossible. This is accomplished merely by one

criminal saying that certain allegations of corruption

and bias on the side of the judge were made to him by

another criminal and that that other criminal confirms

it on affidavit, resulting in a reasonable suspicion of

bias. All criminal proceedings must then be aborted.

Mr Geier referred the Court to several decided cases.

In all these cases the need for the facts on which the

suspicion is based, to be proved by the applicant,

unless they are admitted or common cause, is clearly

stated. But Mr Geier had apparently not read that part

of these decisions. In any event, he never referred

the Court to those parts.

The decisions on which Mr Geier relied were the

following:

S v Dawid, 1991(1) SACR 375 (NmHC).

BTR Industries SA (Pty) Ltd v Metal and Allied Workers

Union, 1992(3) SALR, 673 AD at 690 D - 695 B.

S v Nhantsi, 1994(1) SA 26 (Tr) at 30 A - C, 31 D - E.

Moch v Nedtravel (Pty) Ltd, t/a American Express Travel

Service, 1996(3) SA 1 (AD) at 8 H - I and 9 A - G.

In the latter decision, the judgment in BTR Industries,

supra were followed. The Court, per Hefer, J.A. said:

1

24

"In that case this Court concluded that the

existence of a reasonable suspicion of bias satisfies the test. It is accordingly incumbent on every judge to recuse himself from any matter in respect of which he is reasonably suspected of bias towards or against one of the parties."

See page 8 H - I.

However, the Court later pointed out, in a passage not

referred to by Mr Geier, that:

"It will be noticed that her apprehension that

she might not get a fair and impartial hearing allegedly arose from the strained relationship between the presiding Judge and her attorney, as well as from Fine AJ's alleged threat to 'get' Levin. She obviously has to show that such a relationship in fact existed and that the alleged threat had indeed been uttered. Apart from these factual requirements, it was for the petitioner to satisfy the Court that the grounds for her application were not frivolae causae, South African Motor Acceptance Corporation (Edms) Bpk v Oberholzer, 1974(4) SA 808 (T) at 812 C ad fin) , i.e. that they were legally sufficient to justify the recusal of the presiding Judge."

See report, supra, at p. 12, par. G - H.

In the BTR Industries decision supra, the test is

stated as follows:

"Did the Court a quo come to the correct

conclusion on the facts?

In seeking to apply the law to the facts there

must steadily be borne in mind that the cardinal principle of our common law already mentioned: The exceptio recusationis requires an objective scrutiny of the evidence. The test to be applied therefore involves the legal fiction of the reasonable man - someone endowed with ordinary intelligence, knowledge and common sense. That the test presented is an objective one, however, does not mean that the exceptio recusationis is to be applied in vacuo, as it were. The hypothetical reasonable man is to be envisaged in the circumstances of the litigant who raises the objection to the tribunal hearing 25

the case. It is important, nevertheless, to

remember that the notion of the reasonable man cannot vary according to the individual idiosyncrasies or the superstitions or the intelligence of particular litigant..

The facts have been set forth in some detail in

the earlier part of this judgment. With a view to determining whether MAWU discharged the onus of establishing a disqualifying bias, those facts in my view represent a difficult borderline case."

In the Australian High Court decision in Grassby v R,

it was held:

"The test which is to be applied when bias is

raised has been clearly laid down. It is whether in all the circumstances the parties or the public might entertain a reasonable suspicion that the judge may not bring an impartial and unprejudiced mind to the resolution of the matter before him.

If so, then the judge ought not to

proceed to hear the matter. Of course, as Gibbs, CJ pointed out in R v Simpson, the mere expression of the apprehension of bias does not establish that it is reasonably held, that is a matter which must be determined obj ectively." (My emphasis added) .

See 1991 LRC (Crim) Australia, 32 at 47 b.

In the decision of the High Court of Grenada in a

criminal case the Court of Appeal held that:

"the trial judge had correctly refused to

disqualify himself on the ground of bias on his part, since no evidence had been put forward that the judicial conscience had been disturbed. The application on this ground had to be rejected for lack of seriousness."

See report (1987) LRC (Const) 568 at 591 and 597

post.

In the New Zealand Court of Appeal decision in R v

Cullen, per Eichelbaum, CJ, it was said:

" • The informed objective bystander ....

would not form the opinion that there was a reasonable suspicion of bias." (My emphasis added).

See report [1993] 1 LRC 610 at 614.

In the Namibian decision in S v Dawid, supra, a

judgment by myself, I held that the test was a mixed

objective and subjective one but intended the same

approach as stated in the BTR Industries decision,

supra.

I also pointed out that there was a presumption of

integrity and competence in' favour of judges and

referred in this connection to the dictum in Rondalia

Versekerinqskorporasie v SA Bpk. v Lira, 1971(2) SA 586

(A) at 590 F - G.

I furthermore referred to S v Radebe, 1973(1) SA 796

(A) at 812 per Rumpff, A.J. to a similar effect. The

following passages need to be emphasised in the context

of this application:

"In S v Radebe 1973(1) SA 796 (A) at 812,

Rumpff, AJ, as he then was, approved of the following passage from Gane's English translation of Voet, as a correct statement of the Roman Dutch law, and I quote:

'Trivial reasons insufficient for

recusation. - Otherwise however no favour should be shown to trivial and foolish reasons for suspicion, such as are now and then found to be set up either in malice or thoughtlessness. It seems that we should rather believe that those who are bound by 27

a sworn and tested loyalty, and have been

raised to the function of judging for their eminent industry and dignity, will not so readily and for such slender causes depart from the straight path of justice and give judgment in defiance of their own inner sense of duty.'

Lastly I referred to the South African decision of the

Appellate Division in R v Silber, dealing with contempt

of Court by a lawyer where it was said:

28

"In his argument before this court the

appellant's counsel rightly refrained fromcontending that any of the grounds for recusaladvanced by the appellant had any substancewhatsoever. But he argued that even if noreasonable person could have thought that thereasons advanced by the appellant furnished theslightest foundation for an application forrecusal on the ground of bias, nevertheless, ifthere was a reasonable possibility that theappellant was so stupid as to suppose that thereasons were sufficient, he was not properlycommitted by the magistrate. It is, of course,necessary to distinguish between mere stupidbehaviour and conduct that is wilfullyinsulting. But the circumstances must be bornein mind. The appellant was not a layman or alawyer of little experience in the courts. Hisapplication was not made on the spur of themoment but, as his quotation of extracts from ajudgment shows, was prepared beforehand by him.The case was not like those in which a lawyerhad been guilty of shouting at witnesses(Benson's case, supra) or of an unpremeditatedpiece of discourtesy (R v Rosenstein, 1943 TPD65) , where the fact that the party has beengiven an opportunity to amend his conduct andhas refused to do so may be of the greatestimportance. Here the appellant acteddeliberately in advancing his preposterousarguments. It is, of course, true thatgroundless, even ridiculous, arguments may beaddressed to a court without their reflecting onthe good faith of those propounding them. Butthis was no ordinary argument. The appellantknew that he was going to make, in open court,the grossly insulting charge that the magistratehad been conducting the case unfairly towardsthe accused and was therefore unfit to continueto try the case. I cannot believe that theappellant may honestly have thought that thefutile grounds advanced by him could justify hisasking the magistrate to recuse himself, or thatthere was the remotest chance of themagistrate's doing so.

Why then, one asks oneself, did he make the

application? The explanation of his conduct iscertainly not obvious. Perhaps his vanity hadbeen hurt because his objections, despite hisstrenuous arguments, had been so regularlyoverruled, and he might have been aiming atrestoring his self-esteem and possibly hisposition in the eyes of the public by a daringattack on the magistrate. Another possibilityis that he felt that the case was going againsthis client and hoped to intimidate themagistrate or, perhaps, to drive him intocommitting some irregularity of which use mightbe made on appeal. The appellant's counsel 29

submitted that so long as he was aiming at the

advancement of his client's cause he could not be guilty of wilfully insulting the magistrate. I do not agree. It may seem to a practitioner, in a • seriously misguided moment, that his client's cause may be advanced if he wilfully insults the court, but this ultimate sense of duty to his client will not excuse him if his immediate intention was to insult the court. I do not think that the reasonable possibilities admit of any more favourable estimate of the appellant's behaviour than that he had not consciously worked out a plan to insult the magistrate but that, irritated by the lack of success of his objections, he (adapting the language of Lord ESHER in Royal Aquarium and Summer and Winter Gardens Society, Limited v Parkinson, 1892(1) QB 431 at p. 444) allowed his mind to fall into such a state of unreasoning hostility towards the magistrate that he was reckless whether the charge of bias had the slightest foundation or not. And if that was the position then, too, in my opinion he was wilfully insulting the magistrate."

See report, 1952(2) SA 475 (A)" at 483 D - 484 E.

It was pointed out to Mr Geier during his argument that

in the decision in S v Dawid, the trial judge raised

the point and set out the facts which were therefore

not in dispute at all.

Similarly in the Transkei decision, S v Nhantsi, supra,

all the facts relied on were common cause.

When Mr Geier was asked by the Court whether he could

find any decision which was on par with the facts in

the instant case, he referred to S v Nhantsi, and

pointed out that in Nhantsi it was a ground of recusal

that the presiding judicial officer drove in the same

vehicle with the complainant.

30

This trip was only one of seven grounds relied on, all

of which were common cause. The trip in the Nhantsi

case was 95km. In this case there is no indication of

the distance and duration of the trip except that it

was short.

From the aforesaid decisions it is crystal clear that

there are two basic requirements for a recusal

application to succeed:

1. Proof by the applicant at least on a balance of

probability of the facts relied on for the

reasonable suspicion of bias.

2. A reasonable suspicion of" bias in the mind of the

applicant, objectively justifiable, which must be

held by the hypothetical reasonable, informed

person and based on reasonable grounds.

F. What are the facts relied on by the applicant and have

they been proved on a balance of probability?

1. The first alleged fact in the affidavits of Bock and

Mrs Bock, nee Eberenz, is that the deceased mother of

Bock telephoned the presiding judge some time prior to

October 1993 and asked him: "Brian listen, what are you

going to do with my son?" and the presiding judge

replied: "Listen Anne-Marie I will not send your son to

prison."

This allegation was allegedly made to Bock by his

mother on some occasion in October 1993.

31

It is pure hearsay and inadmissible as proof of the

alleged promise to the mother of Bock and could

therefore not be relied on as a fact on which the

alleged reasonable suspicion could be based.

2. The second and only other alleged fact is also

contained in the affidavit of Bock 3.9 - 3.12 and is to

the following effect:

In July/August the presiding judge gave Bock a lift to

Court whilst the judge was driving towards Court and

Bock was walking on his way to Court.

Bock allegedly enquired from the judge: "What about our

case", and the judge replied: "Listen Bernie, I won't

send you to prison."

In argument Mr Geier,for Bock made it clear that, as in

the case of the first fact supra, he was not relying on

the truth of the allegation but on the perception in

the mind of Bock created by the fact that Bock made

this allegation to the applicant Strowitzki.

However, insofar as the truth may be relevant, the

following points must be made:

2.1 Subsequent to the alleged "trip" and conversation,

Bock was in fact found guilty on 13 0 charges of

Fraud, amounting to over N$2,5 million, committed

over a period of 8 months, where he was the inside

32

person, in a position of trust abused by him. In

the judgment the Court found that he was a self-

confessed liar, that he persisted in his lies for

a long period and that his evidence that he was

instructed by Strowitzki, or strongly influenced

by Strowitzki to tell these lies, was rejected as

false or at least grossly exaggerated. Eventually

the only excuse of Bock for his grotesque lies was

that he would have done anything to get out of

jail and that he himself repudiated these lies

once he was out on bail and removed from the

influence of Strowitzki. The statement made to

the police and admitted by him was about the

Minister of Finance, Dr Herrigel, who allegedly

was involved in a scam, i.e. corrupt dealings

involving N$62 million. It was common cause

between Bock and the State at the trial that these

allegations against innocent and respected persons

holding high office were totally false.

The Courts attitude towards Bock at the stage of

conviction clearly shows not the slightest

indication of a promise to give Bock preferential

treatment. Mr Geier refused in his argument to

concede that there was not the slightest sign of

preferential treatment of Bock in the aforesaid

judgment. It is therefore necessary for the

purpose of this judgment to repeat some of the

passages from the judgment delivered on

15/07/1996 : 33

"In this interview Bock did not claim to

have acted bona fide and without knowing ofany fraud or theft.

The amount of R2 641 000 stated by him as

the amount he was allowed to misappropriatewas probably a reference to the amountalleged by the State to have beenmisappropriated by him and Strowitzkinamely R2 461 958 but where Bockinadvertently used the figures 641 insteadof 461.

Some of the important features of this

interview were:

(i) Bock admitted that he misappropriated

Government money in the amount of R2 641 000 in accordance with instructions from one of the three alleged Government principals who took out R64 million of Government money from the account of the Receiver of Revenue in Windhoek.

(ii) Bock did not mention Strowitzki's name

or role.

(iii) Bock assured the reporter that

what he was telling the reporter would be part of his evidence the next year in the High Court.

6.7 This was however not the end of Bock's

efforts to deceive the police, the Court and the public with monstrous lies.

When he appeared in the magistrate's

court for bail on 1st April, 1993 he persisted with his lies in stating under oath:

"I was working for my salary and

I got instructions from the Minister of Finance to have A2 (then Strowitzki) as an agent."

6.8 It was alleged by Bock in his evidence

in this Court and admitted by van Vuuren that Bock did admit to him after his release on bail and before the commencement of the trial in the High Court, that his allegations in his written statement to van Vuuren and in his interview with the reporter were fabrications originating from Strowitzki " 34

"1. The State has inter alia placed

considerable emphasis on the false defences raised by Bock during the bail applications, in his two voluntary statements to the police and in his admitted interview with the Windhoek Advertiser. As already pointed out supra, the lies told by Bock continued over the period September, 1992 to at least April, 1993. I have also analysed supra how he obviously cooperated with Strowitzki in a joint conspiracy of deception, in which they in desperation, made the most outrageous allegations, incriminating prominent but innocent public figures, such as Dr Herrigel, the former Minister of Finance and Mr Brandt, the State Attorney. Some time after being released on bail, Bock admitted that these allegations were all lies but Strowitzki persisted until the end. This Court however found in the judgment on Strowitzki supra that these allegations were in fact false. Bock admitted not only that they were false, but he knew'of its falsehood at the time when he made it. His excuse was that he was under the influence of Strowitzki and would have done anything to be released on bail. Mr Botes on his behalf also put forward this excuse in argument.

The said excuse is not credible and

does not explain Bock's conduct. It also does not help Bock to avoid the inferences that can and should be drawn from Bock's conduct after arrest. The following points must be made:

(i) The lies told by Bock were not

little white lies, they were gross and atrocious, deliberate and reckless, whether or not they destroyed the reputation of important and innocent public figures, such as Dr Herrigel and Mr Brandt.

(ii) Bock blamed Dr Strowitzki for

his scandalous conduct. First he testified that Strowitzki instructed him, but under cross- examination he admitted that Strowitzki at most advised him and provided him with some information, that he was 35

aggressive at one stage against

Strowitzki apparently because Strowitzki did not produce the required or promised statement or because Strowitzki's statement did not come up to expectations. Bock however remained vague, evasive and unconvincing on this issue as on all others, in examination-in- chief as well as under cross- examination. The fact is that when he alleged in his two statements to the police and in his last bail application in April, 1993 where he alleged that Dr Herrigel had given him the instructions, he knew that he was lying and that he himself was the author of those allegations.

Bock, as pointed out supra,

struck out on his own. Just as Strowitzki did not mention Bock in his proposed written agreement with van Vuuren, so Bock did not'mention Strowitzki in his statements to the police and the interview with the newspaper. He placed himself in the foreground as a principal.

(iii) He made a damning admission, if

not a confession, in his interview with the newspaper, where he explained that he was allowed to misappropriate the amount claimed by the State, by Dr Herrigel. Here he did not claim ignorance of illegality. He made this statement in the context of allegations of alleged misappropriation by Dr Herrigel and two others of R62 million.

(iv) He apparently was determined at

that time, to tell this false story in Court.

(v) He committed perjury when he

continued to allege, this time under oath in Court proceedings in April, 1993, that he acted on instructions of Dr Herrigel that Dr Herrigel had told him that he had appointed Bock as his agent. 36

(vi) In his first statement to the

police he told at least 19 deliberate lies and added one in the second statement four (4) days later.

(vii) He changed his various false

defences as the realization dawned that the previous false defences, could never succeed.

(viii) He says that he would have done

anything to get out of prison because of conditions there. Later in the trial he conceded that he at least benefitted in that he lost a lot of weight."

See unreported judgment 15/07/1996, p. 36

- 37, 71 - 74.

2.2 The further significant event during the trial

foreshadowed for a considerable period, was the

evidence of the psychiatrist Dr Maslowski,

immediately before the application for my recusal,

in which Mr Botes on behalf of Bock and obviously

with the consent and on the instructions of Bock,

in the presence of Mr Geier and his client

Strowitzki, attempted to establish that Bock was

a person with diminished responsibility because,

as a consequence of severe damage to the frontal

lobe of his brain, incurred in an accident, he has

a personality disorder, would be more prone to

criminal influence, would be more prone to commit

crime, would have diminished moral values,

standards and conscience, would have moods of

euphoria, would talk big etc. It is obvious also,

as conceded by his counsel on his behalf, that he

would be prone to lying. Bock on his own defence

37

evidence, was therefore a sick person.

3. To Mr Geier, these events in the trial are not of any

relevance or weight. Of course, these events are

crucial for any reasonable person and the Court having

to consider the credibility of any statement made by

Bock. To Mr Geier and his client the only event of

importance is that Bock was willing to make the

allegations concerning the judge in an affidavit.

4. The probability on the question whether truth or

fiction, were also irrelevant and of no weight to Mr

Geier and his client but again of course, the

probabilities are important to decide whether the

alleged facts were proved by applicant and also to the

so-called reasonable man, evaluating the facts to

decide whether there is a suspicion of bias and if so,

is it a reasonable suspicion based on proved facts.

4.1 The whole reason for Bock making his affidavit is

that he realised as from the conviction stage that

he could expect a substantial period of

imprisonment, that there would not therefore be

any preference accorded to him compared to

Strowitzki when imposing sentence. But although

according to Bock the events at the trial made

this clear to him, reasonable suspicion of

preference of Bock over Strowitzki remains the

credo of Strowitzki, as put forward also by his

advocate Mr Geier, although the only basis for

38

their contention is the affidavit of Bock in which

he says he realised that there will be no

preference.

4.2 The fact that Bock's motive now is that he will

not be preferred as allegedly promised, and now

must find some other fraudulent scheme with

Strowitzki of preventing the infliction of

punishment on them, apparently never crossed the

mind of Advocate Geier, not even to speak of his

client, who was involved with Bock in massive and

continuous fraud, in atrocious lies and schemes to

attempt to frustrate justice. But the probability

of again resorting to fraud and perjury for the

same purpose, once he was again incarcerated with

Strowitzki, would be apparent to any reasonable

person, to the informed person in the street and

to the Court, but apparently not to Strowitzki and

his counsel.

4.3 Mr Geier also relied on the principle underlying

recusal applications that justice must not only be

done, but be seen to be done. Another principle

in fair trial issues referred to in the judgment

in this case on 15/07/96 and also referred to by

Mr Geier in his argument before conviction, is the

requirement expressed in other constitutions but

implied in the Namibian Constitution, regarding

primarily the exclusion of evidence irregularly

obtained which is mutatis mutandis applicable to

the present application namely whether or not,

regard being had to all the circumstances, the

administration of justice will be brought into

disrepute.

On the latter issue the following passage from the

judgment of Seaton, J.A. in the Canadian case of

R v Collins were referred to with approval in my

judgment:

"Disrepute in whose eyes? That which would

bring the administration of justice into disrepute in the eyes of a policeman might be the precise action that would be highly regarded in the eyes of a law teacher. I do not think that we are to look at this matter through the eyes of a policeman or a law teacher, or a judge for that matter. I think that it is the community at large, including the policeman and the law teacher and the judge, through whose eyes we are to see this question. It follows, and I do not think this is a disadvantage to the suggestion, that there will be a gradual shifting. I expect that there will be a trend away from admission of improperly obtained evidence ... I do not suggest that the courts should respond to public clamour or opinion polls. I do suggest that the views of the community at large, developed by concerned and thinking citizens, ought to guide the courts when they are Questioning whether or not the admission of evidence would bring the administration of justice into disrepute."

The principle that justice must not only be done

but must be seen to be done as well as the test in

recusation applications of the perception of the

hypothetical reasonable person, the so-called

"man" in the street, informed but without any

special idiosyncrasies, give the reaction of the

40

society to the present application some measure of

relevance.

It seems that informed opinion reacted with shock

and disgust.

I refer to the following reactions as mere

examples of the perception of the law-abiding,

informed citizens as expressed in:

The Windhoek Observer of August 10 and August 17

and the Republikein in its leading article of 14th

August.

I take judicial notice of the aforesaid

newspapers. Their existence and publication and

circulation are notorious facts in Namibia.

The heading in the Windhoek Observer on p. 1 in

large letters was:

"O'LINN HEARS HE'S BIASED".

The subheading is:

"Swindlers demand judge's recusal".

The heading on p. 2 is: "Shock move: Recusal

demand." The subheading is: "Just prior to

sentence a new delaying tactic." Another heading

on the same page: "Gross liars, says Mr Justice

O'Linn." 41

The editorial comment on p. 6 under the heading:

"Adept at dawdling, temporising and thwarting the

end of justice", reads as follows:

"Criminals have no difficulty in playing

cat and mouse with the lawcourts and the game is one which they have mastered perfectly, making of themselves adept and effective impediments to the execution of court work. To temporise and to dawdle, to secure postponement after postponement, dragging a trial out even as long as five years, are the instruments and aids they have begun to use with such positive results for them.

That collectively they cost the State

millions annually does not occur to them, and should it, they are delighted. How these delaying tactics erode the administration of justice is another matter of total indifference to them for how on earth can a trial be totally fair and open if years have lapsed before finally the salient aspects are placed before the presiding officer?

Reinhard Strowitzki and Bernd Bock are

swindlers. They were on trial over the past four years for close to 8 0 days. A vast sum of money was expended on them, derived from the State's coffers. It is safe to say that the costs are much higher than the 2 400 000 dollars they fraudulently obtained.

But on the day that they had to be

sentenced they asked for the recusal of Mr Justice Bryan O'Linn on the grounds that he was biased towards them. Dwarfing this impudence, is that counsel for Strowitzki, Mr Harald Geier, appears to have eagerly embraced this insolent demand of recusal, condoning their challenge instead of advising them properly. They had years in which they could have asked for recusal but they waited till the last minute. And counsel appears to do nothing about it.

Ours is the land of the bandit, the loafer

and the destroyer. The sustenance of these evils is the ham-fisted government we have and law systems and court practices which cushion the bandit and the thug and which are not the stronghold of the law-abiding. The latter has no dignity and rights; the 42

bandit, yes, he has dignity and limitless

rights.

Mr Geier, what we saw in the high court

yesterday is compelling us to speak directly to you. Sir, you are being paid by the government and the government gets its money from tax resources. You spoke of a very serious matter when approached by some of us newsmen.

On the contrary, Mr Geier.

What we observed does not belong in a

lawcourt. It belongs to the arena of the buffoon, the clown and the jester. It sickened us, as an example, to observe the laughing swindlers Bock and Strowitzki. Your clients, Mr Geier, belong behind bars. The trial has reached its climax and peaked out as a farce.

That's justice in our country."

In the Windhoek Observer August 17, the editorial

comment on p. 6 was:

"One of the more revolting events ever to

take place within the otherwise austere confines of the Namibian high court, was the Strowitzki-Bock circus. The farce was compounded by the support these two swindlers enjoyed from their counsel, Mr Harald Geier, who, whatever his merits and his professional qualities, has caused himself untold harm.

He should have told Reinhard Strowitzki who

was supported by the pathetic Bock that he could not associate himself with the outrageous recusal application.

To those acquainted with what had happened,

Strowitzki and Bock were convicted on 13 0 charges of fraud in that they appropriated close to 2 500 000 dollars of government funds in the department of customs and excise through forged fuel levies.

They were arrested 5 2 months ago, and they

began a cat and mouse game with the lawcourts. They got away with it. The State footed most of the bill for their defence, and after conviction and on the very day that they had to be sentenced, 43

Strowitzki made another application for

recusal of Mr Justice Bryan O'Linn on thegrounds that the judge was biased.

Bernd Bock then came forward in support of

Strowitzki by narrating and later statingunder oath that the most farcical tale inan attempt to sully the name of Mr JusticeO'Linn. The judge, according to Bock whohas been branded by the trial court as anatrocious liar, had told him that he wouldnot be sent to prison! Bock's mother,according to Bernd Bock, was also on thetelephone with Mr Justice O'Linn and thejudge, according to Mrs Bock's lying son,told her too that her son would not go toprison!

She could not be called upon to dismiss or

support the story told by her son for shedied in September 1994.

Let the country know that this newspaper is

steeped in high court matters. The judgesof the Namibian high court, withoutexception, are people of the highestquality, meticulous and fair in what theydo and every citizen can take heart in thefact that the high court is one of the lastrefuges left to those seeking relief fromwhat they consider unfair treatment, andthose on trial for criminal offences canlikewise be assured of fair hearings and ofjudgments strictly within the confines ofthe dictates of the law.

The Strowitzki-Bock circus underlines that

this is the era of the clown, the criminal,the loafer and all those useless andunsavoury elements burdening society.

That men who implicated the Head of State,

Dr Sam Nujoma, in an imaginary scaminvolving 64 000 000 dollars in governmentmonies and with Mr Nujoma, the thenminister of finance, Dr Otto Herrigel, isa desperate final bid to defer sentencecome up with yet another tale sucked fromtheir thumbs, is evidence of the absurdheights to which unbridled liberties andhuman rights can take us if theseprerogatives are not linked toaccountability and responsibility.

Even more disturbing is that an advocate,

a legal practitioner enrolled with the highcourt, supported the two swindlers byfiling the application for recusal. MrGeier, did four years fail to introduce youto a character like Strowitzki?>

44

Did you ever ask him for documentary proof

of his claim to a doctorate? That you went ahead with the bid for recusal Mr Geier, is the crux of the circus in the high court when the two swindlers had to be sentenced.